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ELRCDismissedNairobi Constitutional Petition No. 79 of 2015 (Application filed 18/4/2019)· [2020] KEELRC 914 (KLR)
Chestit Moses Chemben & 92 others v Kenya Revenue Authority [2020] KEELRC 914 (KLR)
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·~6 min to read original · ~4 min briefThe bottom line
#A Kenyan employment court refused 93 former petitioners permission to appeal a year late, because they could not explain the delay.
What this practically means
#Executive summary
#The Applicants, 93 parties to Nairobi Constitutional Petition No. 79 of 2015 whose petition was dismissed by Justice Hellen Wasilwa on 30/5/2018, filed an application on 18/4/2019 seeking leave to appeal out of time. They attributed the delay to a communication breakdown with their former advocates, delayed receipt of typed proceedings, the difficulty of coordinating 93 largely elderly applicants, and financial constraints. The Respondent opposed, contending that the ELRC lacked jurisdiction to grant such leave (which lies under Rule 4 of the Court of Appeal Rules before the Court of Appeal), that the delay was inordinate and unexplained, and that it would suffer prejudice having made no budgetary provision for the litigation across two financial years. Both sides filed written submissions. The Applicants relied on Sections 3 and 20 of the ELRC Act and Section 95 of the Civil Procedure Act read with Section 7 of the Appellate Jurisdiction Act, arguing the delay was excusable and any prejudice could be compensated by damages. The Respondent relied on authorities holding that a case belongs to the litigant, that equity does not aid the indolent, and that delay in obtaining typed proceedings is not a panacea, including the Supreme Court's finding in Naomi Wangechi Gitonga that nine months was inordinate delay. The court held that filing over a year after judgment was inordinately late, that no plausible explanation had been given, and dismissed the application with no order as to costs.
Key legal issues
#01
Whether the Applicants explained the delay in seeking leave to appeal out of time
Holding
The delay of over one year was inordinate and unexplained; the application was dismissed.
Reasoning
Judgment was delivered on 30/5/2018 and the application was filed on 18/4/2019, over a year later. The court found the applicants had given no plausible reason for the delay, including the nine-month gap between learning of the judgment and filing the application. Following the authorities relied on by the Respondent, equity does not aid the indolent litigant.
p. 3
Legal principles established
#Court orders
#- 1.The application filed on 18/4/2019 seeking leave to appeal out of time is dismissed
- 2.No order as to costs
- Jurisdiction invoked
- Sections 3 and 20 of the Employment and Labour Relations Court Act; Section 95 of the Civil Procedure Act as read with Section 7 of the Appellate Jurisdiction Act (invoked by Applicants)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Chestit Moses Chemben & 92 others v Kenya Revenue Authority [2020] KEELRC 914 (KLR)", Case Analysis (2020). Nairobi Constitutional Petition No. 79 of 2015 (Application filed 18/4/2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/914/eng@2020-05-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.